United States v. Hamilton

14 C.M.A. 117, 14 USCMA 117, 33 C.M.R. 329, 1963 CMA LEXIS 225, 1963 WL 4861

• Court: United States Court of Military Appeals
• Decided: June 28, 1963
• Docket: No. 16,834
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

Tried by special court-martial, the accused, upon his voluntary and provident pleas of guilty, was convicted of absence without leave, missing movement, willful disobedience of a lawful order of a petty officer, and three specifications of making bad checks for past due obligations, in violation, respectively, of Uniform Code of Military Justice, Articles 86, 87, 91, and 123a, 10 USC §§ 886, 887, 891, 923a. He was sentenced to bad-conduct discharge, forfeiture of ?50.00 per month for six months, and confinement at hard labor for six months.

Scrutiny of the record discloses that no information in mitigation and extenuation was presented to the court-martial by accused’s nonlawyer counsel. Nevertheless, it appears that accused had, prior to the convening of his court-martial, made restitution in the amount of $1,699.10 for the bad cheeks which he had written and negotiated and that such fact was known to his counsel. His inexplicable silence concerning this evidence, “which would manifestly and materially affect the outcome of the case,” brings the situation here depicted within the ambit of our decision in United States v Rosenblatt, 13 USCMA 28, 32 CMR 28.

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing on the sentence may be ordered.